Simon Mitchell and Secretary, Department of Social Services

[2015] AATA 28

[2015] AATA 28

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2238
Re	Simon Mitchell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	21 January 2015
Place	Sydney

The decision under review is affirmed.

..............................[sgd]........................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – Parenting Payment – eligibility – residence requirements – Australian Citizen – whether Applicant was an Australian Resident at the time of the claim – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 7(2), 7(3), 500(1)

Social Security Administration Act 1999 (Cth) s 36(1)

CASES

Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745

Hafza v Director-General of Social Security (1985) 6 FCR 444

Re Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Professor R McCallum AO, Member

21 January 2015

BACKGROUND

1. The Applicant, Mr Simon Mitchell, seeks review of a decision rejecting his application for a parenting payment. He is the father of two sons whom I shall call Child B and Child C respectively. Child B was born in Thailand in September 2011, and Child C was born in Thailand in May 2013. The Applicant's de facto partner (whom I shall refer to as the Applicant's partner), was born in Thailand and is a Thai citizen. She is the mother of Child B and Child C. The Applicant has a daughter whom I will call Child A, who was born to his former partner in Thailand in June 2008. Child A resides in Thailand with her Mother who is a Thai citizen.

2. The Applicant is an Australian citizen. Child B and Child C are Australian citizens and hold Australian passports.

3. The Applicant contacted Centrelink on 2 January 2014 with an intention to claim a Parenting Payment Partnered for Child C. On 9 January 2014, the Applicant lodged an application for a Parenting Payment Partnered, which was rejected by Centrelink on 30 January 2014. The ground for the rejection was that the Applicant did not meet the Australian residence requirements for the parenting payment. On 7 February 2014, the Original Decision Maker affirmed the decision under review, and on 19 February 2014 an Authorised Review Officer (ARO) also affirmed the decision under review. On 28 March 2014, the decision to reject the Applicant's parenting payment claim was affirmed by the Social Security Appeals Tribunal (SSAT). The decision of the SSAT is now before this Tribunal for review pursuant to the Administrative Appeals Tribunal Act 1975 (Cth).

4. On 2 January 2014, the date on which the Applicant contacted Centrelink, the Applicant, his partner, Child B and Child C were living with the Applicant's parents in a house in the Sydney suburb of Hornsby. On or about 6 May 2014, the Applicant's partner, Child B and Child C travelled to Thailand in order for the Applicant's partner to obtain a partner visa. The Tribunal has before it a Department of Immigration and Border Protection: Permanent Partnership Visa Tax Invoice dated 21 August 2014. On the date of the hearing, 6 January 2015, the Applicant's partner and Child B and Child C were still living in Thailand.

   THE LEGISLATION

5. The relevant provisions covering parenting payments are found in The Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Section 36(1) of the Administration Act relevantly provides:

   "...[T]he Secretary must, in accordance with the social security law, determine a claim for a social security payment... either granting or rejecting the claim."

6. Section 500(1) of the SS Act deals with the qualifications for parenting payment and it relevantly provides:

   "A person is qualified for parenting payment if:

   (a) the person has at least one PP child (see section 500D); and

   (b) the person is an Australian resident; …”

7. For the purposes of the SS Act, residence is defined in section 7 which relevantly provides:

   "(2) An Australian resident is a person who:

   (a) resides in Australia; and

   (b) is one of the following:

   (i) an Australian citizen;…”

   (3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

   (a) the nature of the accommodation used by the person in Australia; and

   (b) the nature and extent of the family relationships the person has in Australia; and

   (c) the nature and extent of the person’s employment, business or financial ties with Australia; and

   (d) the nature and extent of the person’s assets located in Australia; and

   (e) the frequency and duration of the person’s travel outside Australia; and

   (f) any other matter relevant to determining whether the person intends to remain permanently in Australia."

   THE ISSUE WHICH I AM REQUIRED TO DECIDE

8. The issue which I am required to decide is whether the Applicant was resident in Australia on 2 January 2014, for the purposes of his claim for a Parenting Payment Partnered. Whether or not the Applicant was relevantly resident in Australia depends upon the application of the test which is contained in section 7(3) of the SS Act which is set out above. In applying this test, the case law is instructive. In ReKillick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059, Senior Member Toohey said at [16]: "Residence comprises essentially two elements: physical presence and the intention to treat a place as home, at least for the time being, although not necessarily forever." The Senior Member quoted what Wilcox J said sitting in the Federal Court of Australia in Hafza v Director-General of Social Security (1985) 6 FCR 444. His Honour commented upon the general concept of residence. He said at 449-450:

   "Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place – even involuntarily : see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at p 248 and Keil v Keil [1947] VR 383 – a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place – Levene v Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 at p 225 and Judd v Judd (1957) 75 WN (NSW) 147 at p 149 – together with an intention to return to that place and an attitude that that place remains "home" – see Norman v Norman (1969) 16 FLR. 231 at p 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght and the reference by Williams J. to "a home or homes" – and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained."

9. It is clear from this quotation that the application of the general concept of residence in any particular case will be shaped by the words and by the intention of any relevant statutory provisions. In the matter before me, the relevant statutory provision is section 7(3) of the SS Act.

10. In Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745, Deputy President McDonald described the Tribunal's task when applying the section 7(3) residence test. The Deputy President said at 748:

    "The principles set out above codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that constitute the criteria will vary in each case. In the end, as is apparent from the wording in section 7(3)(f), the criteria are there to guide the decision-maker in determining the person's intention as to the place of residence. As was submitted by [the Department], when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant's accommodation outside Australia."

    The evidence of the Applicant

11. The Applicant gave sworn evidence, and this was the only oral evidence before the Tribunal.

12. In relation to his accommodation in Australia, the Applicant stated that on 2 January 2014, he and his partner, Child B and Child C lived in one room at his parent's home in the Sydney suburb of Hornsby. As Child C was only six months old, and Child B was two and a half, the Applicant said that it was easier to have both children sleeping with himself and his partner in the one room. The Applicant confirmed that he was listed as one of the tenants on a tenancy agreement dated 6 June 2014, for a house in the Sydney suburb of Wahroonga . The other four signatories to the agreement were his parents, his brother, and his brother's former girlfriend. The house is divided into two units. As the Applicant's partner and children are still in Thailand, the Applicant lives in one of the units, with his other family members residing in the other unit. He said that he does not pay rent. Instead, his parents pay the rent and he has agreed to pay them back when he obtains money. His parents purchase most of the groceries etc.

13. With respect to his accommodation in Thailand, the Applicant stated that he, his partner and the children often stay at his partner's uncle's house in Bangkok. They also stay with his partner's father, with her grandmother, and with friends. The Applicant said that he does not pay any rent in Thailand.

14. In relation to his family relationships, the Applicant said that he has close relationships with his parents, two brothers, his grandmother, cousins and his aunties and uncles. The Applicant stated that he has not communicated with Child A for more than a year. However, he did fly back to Thailand from 2 December 2013 to 9 December 2013 to enroll Child A in school. The Applicant said that his former partner takes close to full responsibility for the raising of Child A.

15. The Applicant said he is currently unemployed. He last worked in Australia at a bistro pub in late 2011. He said he had received an ORS group provider letter dated 19 August 2014 and was thus registered for employment services. The Applicant stated that he had applied for a baggage handling job at Qantas, and he is hopeful of being considered during the next Qantas intake in February 2015. The Applicant also stated that he had attended an Australian Defence Forces seminar for temporary employment as a storeperson and that he had had a medical examination.

16. The Applicant said that he has never engaged in paid employment in Thailand for on almost all visits to that country he had been on tourist visas.

17. In the Applicant's written response to the Respondent’s Statement of Facts and Contentions, the Applicant wrote the following about his difficulty in obtaining employment:

    "I find it very difficult to find employment. I left school in year 10. I was diagnosed with ADHD at the age of 11 and was on Ritalin for 4 years. I have no skills or qualifications. I feel my Familial hypercholesterolemia (fat deposits under my eyes) is discriminated against when applying for jobs. It has also contributed to my low self esteem when looking for work."

18. With respect to his assets, the Applicant stated in his oral evidence that he has a bank account and a superannuation account in Australia. His possessions mainly comprise kitchen utensils, children's equipment and toys. The Applicant also said that he has no assets in Thailand.

19. The Applicant described his various travels from 2006 to the present. Most of his time overseas was spent in Thailand. In recounting his travels, he was assisted by the T-documents concerning travel records which were before the Tribunal.

20. The Applicant said that he was away from Australia, mainly in Thailand, from 26 August 2006 to 4 May 2007. He said that during this visit he met his former partner. The Applicant travelled again to Thailand from 16 July 2007 to 20 March 2009. Child A was born in June 2008. He said that his relationship with his former partner became strained because his former partner did not wish to live in Australia. He said that he left Thailand at that time because he was advised to depart before the expiration of his tourist visa.

21. The Applicant again travelled to Thailand from 15 May 2009 to 29 March 2010. He said that on this visit he met and began a relationship with his current partner. He returned to Australia because he was on a tourist visa.

22. The Applicant again travelled to Thailand from 13 May 2010 to 20 August 2010 in order to further his new relationship with his partner, but he returned to Australia as his tourist visa had expired.

23. The Applicant went to Thailand from 14 October 2010 to 17 Feb 2011, and again from 28 April 2011 to 14 November 2011. Child B was born in early September 2011. When the Applicant returned to Australia on 14 November 2011, he was accompanied by his partner and Child B. The Applicant said that he believed that his partner's family visa would enable her to be resident in Australia, but that this particular visa was discontinued in 2012.

24. The family travelled back to Thailand from 3 May 2012 to 26 July 2012, and again from 3 September 2012 to 2 December 2012, and again from 2 March 2013 to 11 November 2013 in their quest for a visa for the Applicant's partner. Child C was born in May 2013, and the Applicant said this slowed down the visa process. In evidence, the Applicant said that while he had received some visa advice from a migration agent in Australia, he had never engaged the services of a migration agent to assist him with obtaining a partner visa for his partner.

25. On or about 5 May 2014, the Applicant travelled back to Thailand with his partner and with Child B and Child C. He returned to Australia on his own on 4 August 2014. He flew back to Thailand on 9 October 2014 and returned to Australia on 20 November 2014. In cross-examination it was put to the Applicant that he returned on 20 November 2014 merely because this matter was originally listed before the Tribunal on 21 November 2014. The Applicant denied that this was the motivation for his return.

26. In cross-examination, it was also put to the Applicant that at the hearing before the SSAT on 28 March 2014, he had stated that it was his intention to remain in Australia. Yet, on or about 5 May 2014 he travelled back to Thailand with his partner and Child B and Child C. The Applicant responded that on 28 March 2014 he intended to remain in Australia but that he had to return to Thailand to assist his partner to obtain a partner visa.

    CONSIDERATION

27. I have considered the documentary evidence before the Tribunal and the oral evidence of the Applicant. I have also considered the relevant case law. I am required to decide whether the Applicant, who is an Australian citizen, was resident in Australia on 2 January 2014 within the terms of the residence test set out in section 7(3) of the SS Act, which has been set out above. I shall now examine each criterion in this test, having regard to the documentary and oral evidence before the Tribunal.

28. While I am required to examine the Applicant's circumstances as they existed on 2 January 2014, subsequent matters may prove to be useful in assessing and in evaluating these circumstances.

    The nature of the accommodation used by the person in Australia

29. On 2 January 2014, the Applicant, his partner, Child B and Child C were living in one room at the Applicant's parent's house. The Applicant and his family had recently returned to this house from Thailand on 11 November 2013, and from 2 December to 9 December 2013, the Applicant went back to Thailand to enroll Child A in school. In my view, on 2 January 2014 this accommodation is properly characterised as temporary accommodation. It is akin to adult parents bringing their children for a visit to grandparents.

30. Subsequently, the Applicant did move with his parents to a house in Wahroonga and his name was on the tenancy agreement as one of five tenants. However, the Applicant has not paid rent for this accommodation, either to his parents or to the landlord. Neither the Applicant's partner, nor Child B or Child C have ever lived in the Wahroonga home. This subsequent accommodation confirms the characterisation of the accommodation on 2 January 2014 as temporary accommodation.

    The nature and extent of the family relationships the person has in Australia

31. The Applicant said he has loving relationships with his parents and family members in Australia, and I accept this statement. The Applicant also said that he has not seen Child A for more than one year and in effect has little to do with her upbringing. Yet, in December 2013, he did fly back to Thailand to enroll Child A in school. I infer that the Applicant still has a relationship with, and affection for Child A.

    The nature and extent of the person’s employment, business or financial ties with Australia

32. The Applicant said that the last time he undertook employment in Australia was in a bistro pub towards the close of 2011. The Applicant further stated that he has never undertaken employment in Thailand. The Applicant is currently unemployed.

    The nature and extent of the person’s assets located in Australia

33. The Applicant stated that he has a bank account and a superannuation account in Australia. He further stated that in the main his Australian possessions are kitchen utensils, children's toys and clothing.

34. With respect to the Applicant's bank account, the Guide to Social Security Law at 3.1.1.10 provides in part as follows:

    "Financial ties such as business investments in Australia can be an indicator of where the person is living. However, given the nature of global banking today, simply having an investment in Australia is, by itself, a weak indicator of where the person is residing. Having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia."

35. I find that the Applicant has very few assets in Australia, and neither his bank account or superannuation account alter this characterisation.

    The frequency and duration of the person’s travel outside Australia

36. From the travel records before this Tribunal, together with the Applicant's oral evidence, it is clear that from 26 August 2006 to the date of this hearing, 6 January 2015, the Applicant has spent more time overseas than in Australia. Most of his time overseas has been spent in Thailand.

37. While living in Thailand, the Applicant has entered into two relationships, first with his former partner, and second with his current partner. The Applicant has fathered Child A, Child B and Child C, and all three children were born in Thailand.

    Any other matter relevant to determining whether the person intends to remain permanently in Australia

38. The Applicant stated in his evidence that much of the time which he and his partner have spent back in Thailand since November 2011, has been to obtain a partner visa for his partner. Yet, in his evidence, the Applicant said that he had never employed a migration agent to assist his partner to obtain the appropriate visa.

    FINDINGS

39. I find that on 2 January 2014, the Applicant was not resident in Australia within the meaning of the test set out in section 7(3) of the SS Act. My reasons for so finding are as follows.

1. First, in all of the circumstances, the accommodation of the Applicant and his family at his parent's home in Sydney on 2 January 2014 was temporary. I further find that the subsequent accommodation in Wahroonga did not alter the characterisation of the accommodation as temporary.

2. Second, I accept that the Applicant has loving relationships with his parents and other family members in Australia. However, I do give some weight to my finding that the Applicant still has a relationship with Child A who lives permanently in Thailand.

3. Third, I give weight to the fact that the Applicant was unemployed on 2 January 2014, and is still unemployed. He has no other business ties in Australia.

4. Fourth, the Applicant has very few assets in Australia, other than a bank account and a superannuation account.

5. Finally, I give most weight to the fact that since 2006, the Applicant has spent more time living in Thailand than in Australia. It was in Thailand where the Applicant formed relationships which resulted in the birth of three children in Thailand.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.................................[sgd].......................................

Associate

Dated 21 January 2015

Date(s) of hearing	21 November 2014, 6 January 2015
Advocate for the Applicant	Ray Mitchell
Solicitors for the Respondent	Kate Martini, Department of Human Services